HERAEUS LTD v. CHAN YUN MUI AND ANOTHER

HERAEUS LTD v. CHAN YUN MUI AND ANOTHER

The application was refused because it was taken out late without adequate explanation, the sole reason (quarantine would jeopardise the witness's work) was insufficient to displace the presumption in favour of in-person evidence, and the witness's evidence was not merely peripheral but sought to address substantive disputed issues that engage credibility, so exercise of discretion to permit VCF was inappropriate.

Citation
[2021] HKCFI 1849
Parties
Plaintiff: Heraeus Limited; 1st Defendant: Chan Yun Mui; 2nd Defendant: Chu Keng Ming
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 June 2021
Case Number
HCA878/2011
Procedural Posture
Action No 878 of 2011 (civil Guarantee Action) / Pre Trial (application for Leave to Give Evidence by Video Conferencing)
Outcome
Application refused
Legal Topics
Video Conferencing Evidence, Leave to Give Evidence Remotely, Guarantee/contractual Liability, Estoppel, Misrepresentation, Non Est Factum, Witness Credibility
Source Language
EN
Civil Procedure Evidence Contract Law Commercial Law Video Conferencing Evidence Leave to Give Evidence Remotely Guarantee/contractual Liability Estoppel +3 more

Case Brief

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Parties

Heraeus Limited

Plaintiff

Chan Yun Mui

1st Defendant

Chu Keng Ming

2nd Defendant

Procedural Posture

Action No 878 of 2011 (civil Guarantee Action) / Pre Trial (application for Leave to Give Evidence by Video Conferencing)

Legal Issues

  1. 1 Whether to grant leave for a witness to give viva voce evidence by video conferencing facilities (VCF)
  2. 2 Whether the applicant provided sufficient reason to displace the usual norm of in-person evidence
  3. 3 Whether the proposed evidence is peripheral or substantive and whether it raises credibility issues

Ratio Decidendi

The application was refused because it was taken out late without adequate explanation, the sole reason (quarantine would jeopardise the witness's work) was insufficient to displace the presumption in favour of in-person evidence, and the witness's evidence was not merely peripheral but sought to address substantive disputed issues that engage credibility, so exercise of discretion to permit VCF was inappropriate.

Court Disposition

Application refused

Orders

  • Application for leave to give evidence by VCF refused
  • Costs of the application to be borne by the Plaintiff, with certificate for counsel to both 1st and 2nd Defendants